627 F2d 762 United States v. Booty

627 F.2d 762

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Laverne BOOTY, Defendant-Appellant.

No. 79-5237.

United States Court of Appeals,
Fifth Circuit.

Oct. 8, 1980.

Appeal from the United States District Court for the Eastern District of Louisiana; Morey L. Sear, Judge.

James A. McPherson, New Orleans, La., for defendant-appellant.

John P. Volz, U. S. Atty., Ronald A. Fonseca, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

ON PETITION FOR REHEARING

Before THORNBERRY, FRANK M. JOHNSON, Jr., and HENDERSON, Circuit Judges.

PER CURIAM:

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1

IT IS ORDERED that the petition for rehearing filed on behalf of Robert Laverne Booty in the above entitled and numbered cause be and the same is hereby DENIED, and that paragraph two of Part II of the opinion of this Court dated July 21, 1980, 621 F.2d 1291, be modified to read:

2

Since Booty presented evidence in his own behalf following denial of the motion and did not renew the motion at the close of all the evidence, this Court's review of the evidence is limited to a determination of whether there has been a 'manifest miscarriage of justice.' See United States v. White, 611 F.2d 531, 536 (5th Cir. 1980); United States v. Bourg, 598 F.2d 445, 448 (5th Cir. 1979); United States v. Phipps, 543 F.2d 576, 577 (5th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 564 (1977). See also United States v. Sander, 615 F.2d 215, 218 (5th Cir. 1980). When viewed in the light most favorable to the verdict with all reasonable inferences and credibility choices made to support the verdict, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), the evidence in this case establishes that no miscarriage of justice has occurred. Even if the 'manifest miscarriage of justice' rule is not applicable, the conviction in this case must still be affirmed since a review of the evidence presented upon the trial of this case reflects that the evidence, when considered in its entirety, was sufficient beyond a reasonable doubt to sustain the conviction.